What is Federalism?
Federalism is a form of government that delegates sovereign power across multiple units.
Quick question
Over/under: how many governments are there in the U.S.?
As of 2017…
- One national government
- 50 state governments (plus DC and territories)
- ~90,000 local governments
- ~3,000 counties
- ~20,000 cities/municipalities
- ~16,000 townships
- ~50,000 special purpose districts
Why do we have federalism?
From last week…
- Substantive reasons
- Suspicions of national power
- Protection of local interests
- Policy made by those closest to problem
- Practical reasons
- Collective action problems under Articles
- Politics at the convention
Big-Picture Theory
Federalism is a “bargain between prospective national leaders and officials of constituent governments for the purpose of aggregating territory, the better to lay taxes and raise armies.” - Riker (1964)
National leaders offer the bargain to expand their territory because they can’t do it on their own.
Constituent governments accept bargain because they need protection or desire strength that they can’t obtain on their own.
Big-Picture Theory
For Riker, formally, it is federalism if…
- Multiple governments covering the same land and people
- Each government has at least one area where it holds autonomous authority
- This authority is codified, at least nominally
For Riker, no guarantee of relationship between federalism and freedom. Soviet Union met these criteria in a one-party state.
U.S. Federalism was Inevitable
Practical reality of the time: no alternate universe where Constitution sets up unitary government
Some High-Level Consequences
- Forum shopping
- “Voting with feet”
- Role for courts to adjudicate disputes between federal/state governments
- This is going to come up a lot this week
Powers
Under federalism, some powers are…
- Exclusive: (federal sets up army / states set up police forces, e.g.)
- Concurrent: (federal and state both work on roads, social welfare, e.g.)
Federal powers
National government can…
- Print money
- Regulate interstate commerce / international trade
- Military, defense/war
- Post offices / mail
- “Necessary and proper” laws to execute the above
National government can’t…
- Tax goods traveling between states
- Spend money without Congress authorizing it
- Change state boundaries
- This one’s fundamental to federalism
Federal powers
State government can…
- Issue licenses
- Regulate intra-state commerce/business
- Administer elections
- Set up local governments
- Ratify constitutional amendments
- Use powers not reserved by the national government or prohibited in the Constitution
State government can’t…
- Make international treaties
- Print money
- Tax imports/exports
- Interfere with private contracts
- Violate rights set by national government
Federalism Between the States
Full faith and credit clause: states have to respect each others’ laws and judgments.
My marriage in Virginia is recognized in North Carolina.
Federalism Between the States
Privileges and immunities clause: visiting U.S. citizens have same rights as residents.
You can buy the fun fireworks in South Carolina. For now, you can still drive to Virginia to get an abortion.
What About Local Governments?
Chartered and dissolved by states, not mini-states. Codified by “Dillon’s Rule” in 1868.
States can pass laws that set local policy.
How Common is Federalism?
Over/under: what percent of world governments have federal systems?
It’s not uncommon. Australia, Canada, and Germany have federal systems.
But ~80% of world governments (incl. Israel, France, Japan, and Sweden) have unitary systems.
- Includes cases where subnational governments lack important powers (UK / Scotland).
Confederations are very rare these days.
Federalist 45
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.”
Don’t sleep on the Commerce Clause!
From One Type of Federalism to Another
Over time, contestation and interpretation has moved us from dual federalism to cooperative federalism.
Chisholm v. Georgia (1793)
Issue: Georgia’s debt for Revolutionary War goods owed to out-of-state individual
Holding: Citizens of one state can sue another state in federal court
But! Reversed by 11th Amendment. Upshot: affirmation of state power.
McCulloch v. Maryland (1819)
Issue: Maryland’s attempt to tax the Baltimore branch of the Second National Bank
- Are national banks constitutional?
- If so, can states tax them?
Holding: Federal government can set up a bank, states can’t tax its branches
Upshot: Affirms national supremacy, less state power
Gibbons v. Ogden (1819)
Issue: State-granted monopoly on navigation of interstate waterways within state boundaries
Holding: State can’t interfere with federal regulation of interstate commerce
Upshot: Clarifies and extends commerce clause (to navigation), less state power
Barron v. Baltimore (1833)
Issue: City construction reduced deep waters in harbor, damaging wharf owner’s profits. Won damages in civil court, reversed by state court.
Holding: 5th Amendment property protections don’t extend to states
Upshot: Clarifies “dual federalism,” affirms state power.
Dred Scott v. Sandford (1857)
Background: Missouri Compromise of 1820:
- Admitted Missouri as slave state
- Created Maine as free state for balance
- Outlawed slavery above 36° 30’ latitude
Dred Scott v. Sandford (1857)
Issue: Does residence in free states/territories under the Missouri Compromise of 1820 grant freedom in slave states?
Holding:
- No.
- Black people lack standing in federal court
- Missouri Compromise unconstitutional
- Violates 5th Amendment property rights protections
Dred Scott v. Sandford (1857)
Upshots:
- More state power
- Contributing cause of the Civil War
- Upends management/suppression of political cleavage dating back to the founding
Widely considered the worst Supreme Court ruling
Civil War as a Turning Point
Civil War fought over one very specific state right.
Afterward, we get the 13th-15th Amendments in quick succession.
14th, in particular, has big implications for federalism:
- Why?
- Extended federal due process/equal protection to states…incrementally.
Civil War and the National Idea
“Before the first Bull Run we generally said ‘the United States are’—are a Confederacy, for instance; after Appomattox we learned to say ‘the United States is’—is a Nation, for instance. The war settled permanently the question of grammar, and all that that implies—behind the sentiment was the syntax…Whatever we may have thought once, however we may have felt once, it is now seen to be better for us all to say ‘the United States is’—is a Nation.” - Washington Post editorial board, 1887
Lee, Melissa, Nan Zhang, and Tillman Herschenroder. 2023. “From Pluribus to Unum? The Civil War and Imagined Sovereignty in Nineteenth-Century America.” American Political Science Review FirstView 1-17.
Reading assignment answers
Frymer’s argument(s) for how land use policy helped alleviate/suppress racial issues?
New states incorporated as either slave or free; incorporation, removal, or non-expansion as policy options.
Reading assignment answers
Why does the US historical case offer an “alternate model of state authority”?
Conventional accounts highlight institutional/military capacity. In US, land policy allowed for expansion despite relatively decentralized institutions and weak military.
Reading assignment answers
Two (of four) ways that the costs/benefits of federalism are unequally distributed?
- Venue selection
- Information asymmetry
- Lots of government activity to monitor, some better able to
- Exit threat
- Not everyone can vote with their feet
- Decentralized accountability
- Who’s actually responsible when there are multiple authorities?
Picking up where we left off
Civil War is a big turning point
- Politically (fought over very specific state right)
- Institutionally (13th-15th Amendments)
- Culturally (national unification)
Wither Dual Federalism?
Courts re-establish some state power in late/post Reconstruction:
- 1873: 13th and 14th Amendment don’t cover state laws
- Narrowly interpreted to cover freed slaves only
- 1877: Reconstruction ends
- 1883: Civil Rights Act of 1875 ruled unconstitutional
- Restored right to discriminate in public accommodation (this comes up a lot)
- Commerce clause allows regulation of inter-state supply chains but not intra-state production
- Anti-trust, child labor, e.g.
But also:
- 1909: 16th Amendment (national income tax)
- 1912: 17th Amendment (direct election of senators)
New State Ice Co. v. Liebmann (1932)
Issue: Can Oklahoma use licensing power to grant a monopoly in ice sales?
Holding: No, this violates 14th Amendment due process
Upshot: erodes dual federalism; Brandeis “laboratories of democracy” dissent
The Great Depression
Interrelated and cascading economic crises (financial, industrial, agricultural)
Presidents Coolidge and Hoover resisted national response
Roosevelt / New Deal reforms dramatically expanded federal government’s role in economy (and, by extension, power over states)
Court Packing Threat
Elements of New Deal consistently struck down by Courts, prompting court-packing threat
- Court packing was unpopular (norm violation!) and didn’t pass
- But afterward, favorable rulings that limit state economic power
- national collective bargaining rights, minimum wage, crop subsidies
Industry, Crisis, Rights, and Cooperative Federalism
Industrialization means less commerce stays within-state
National crises (wars, Great Depression, COVID-19)
Transition to cooperative (or “picket fence”) federalism
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Bianco, William, and David Canon. 2023. American Politics Today, 8th Edition. W.W. Norton.
Characteristics of Cooperative Federalism
National and state governments working in overlapping policy areas
National government uses variety of incentives to influence state policy
Carrots: Fiscal Federalism
Examples:
- Conditional funding (age limit on alcohol purchases)
- Also an example of crossover sanction (alcohol sales x highway funding)
- Categorical grant (Common Core)
- Block grant (Temporary Assistance for Needy Families)
Sticks: Coerceive Federalism
Examples:
- Preemption (Motor Voter Act)
- Unfunded mandate (Americans with Disabilities Act)
Example: Medicaid Expansion
2010: Affordable Care Act (“Obamacare”)
Categorical grants to states to expand Medicaid
Supreme Court: can’t force states to take the money
Competitive Federalism
Tiebout (1956): Communities offer different baskets of goods (public services) at different prices (taxes), people sort efficiently based on their preferences.
Some (not all) key assumptions:
- Frictionless movement
- Complete information
- Equal financing of public goods
- No public good spillover
All models are wrong, but some are useful.
Competitive Federalism
“Crucial to understanding federalism in modern day America is the concept of mobility, or ‘the ability to vote with your feet.’ If you don’t support the death penalty and citizens packing a pistol — don’t come to Texas. If you don’t like medicinal marijuana and gay marriage, don’t move to California.”
Grumbach and Michener raise some objections. What do we think?
Competitive Federalism
Hearkening back to states as “laboratories of democracy”
Consider: Delaware and “Delaware corporations” – business friendly…
- Legal environment
- Financial regulation
- Tax structures
- Transparency/disclosure
Competitive Federalism
Ohio against the country
Competitive Federalism: Problems
Negative externalities / issues with public goods provision:
- Air polluting industry close to upwind border, e.g.
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Monogan III, James, David Konisky, and Neal Woods. 2017. “Gone with the Wind: Federalism and the Strategic Location of Air Polluters.” American Journal of Political Science 61(2): 257-270.
Competitive Federalism: Problems
Race to the bottom:
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State Government Variation
State governments vary wildly in how professionalized they are.
- How many days in session?
- Paid enough to quit your day job?
- Term limits?
- Staff size?
- Chamber staff, member staff
Collaboration Across States
All states compare notes. Some states plagiarize.
- Interest groups provide legislative subsidy with “model legislation”
- Less professionalized legislatures copy more
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Jansa, Joshua, Eric Hansen, and Virginia Gray. 2019. “Copy and Paste Lawmaking: Legislative Professionalism and Policy Reinvention in the States.” American Politics Research 47(4): 739–767.
Return of Large States
State policy as a market leader
- California fuel efficiency standards
- Negotiate with large automakers
- Other states sign on
Recent Reassertions of State Power
- U.S. v. Lopez (1995): carrying a gun isn’t interstate commerce
- Bond v. United States (2011): individuals can raise 10th Amendment challenges to federal law
- NFIB v. Sebelius (2012): can’t force states to accept Medicaid expansion money
- Individual mandate OK as a tax but not as a regulation (not interstate commerce)
- U.S. v. Windsor (2013): can’t deny federal benefits to same-sex couples legally married under state law
- Shelby County v. Holder (2013): Voting Rights Act “preclearance” policy violates state sovereignty
- Dobbs vs. Jackson (2022): States can regulate abortion, overturning Roe v. Wade
Who Benefits from Federalism?
Individuals/groups with resources to forum shop and vote with their feet.
Interests without national power. This can cut both ways.
Things to think about
How powerful is federalism as an ideal in the United States?
Things to think about
Given trends in nationalization and polarization, how distinct are states these days?
Distinct communities, or differentially-weighted baskets of Democrats and Republicans?
